SUMMARY TRIAL II

• Summary Trials (II) – Coverage:

-Order of an acquittal;
-Consideration of the charge;
-Defense case;
-Conclusion of trial –final verdict ;
-Plea in mitigation;
-Submission by prosecution on aggravating factors;
-Victim Impact statement;
-Sentence according to law;
-Absence of complainant or accused;
-Opening and closing addresses
-[s 173(d)-(o); s 174 CPC]
s.173 (g) of the CPC
Discharge Acquittal
At any stage of the proceeding There is no prima facie case made out against
the accused
A who is discharges may again be charged A who is acquitted cannot be put on trial
with the same offence again for the offence of which he has been
acquitted, otherwise he may plead for
autrefois acquit.
Oder of discharge is not a judgement Order of acquittal is in the nature of a
judgement
S.173g - Discharge of A where charge
is groundless
• s.173g : Nothing in para (f) shall prevent court from
discharging A at any previous stage if for reasons to be
recorded, the court considers the charge to be groundless.
1. “Nothing in paragraph (f)” - means court may discharge A
if charge is groundless before the close of the prosecution's
case.
2.”Groundless charge”
#CHU CHEE PENG [1973] 2 MLJ 35 - charge is groundless
where the very corner stone of prosecution's case collapses.
S.173g - Discharge of A where charge
is groundless
3. “Discharge” - M may only discharge not amounting to
acquittal (DNAA) if charge is groundless
#KUPPUSAMY [1948] MLJ 25
#CHU CHEE PENG [1973] 2 MLJ 35
#ISMAIL BAKI [1982] 2B MLJ 5
# MOHAMED BIN SAID [1984] 1 MLJ 50
#AU SEH CHUN [1998] 6 MLJ 179 - no evidence to prove the
charge was groundless - M should postpone - only
prosecution may decline to prosecute under s.254
S.173g
4. Where investigation is incomplete:
#HSL PERERA [1977] 1 MLJ 12 - court held if investigation is not
completed, M should DNAA and not to acquit.
#TAN KIM SAN [1980] 1 MLJ 99 - M Should DNAA where investigation
was incomplete as charge was groundless
5. Where investigation is complete:
#KARUMAH [1980] 2 MLJ 102 - where investigation is complete and
prosecution witness is not available. M should postpone case.
Note: DNAA - A may be charged again
DAA (Discharge and Acquittal) - A cannot be charged for the same
offence again - autrefois acquit.
• PP v Ling Leong Kong [2009] 1 CLJ 211
The Sess ct judge granted a DNAA before a trial due to
constant delays by the prosecution and the absence of the
complainant.
HC: Upon revision held that the court before invoking s.
173(g) of the CPC must at least allow the prosecution to
proceed with the case. Mohd Apandi Ali J opined that only
then can the court evaluate the evidence and its
circumstances to consider and conclude whtr the charge is
groundless.
s.173h - A to enter his defence if prima
facie case
• s.173h: read section
Note: All cases on prima facie.

1. s.158: Court may amend charge at any time before judgement

given.
#HENG YOU NANG [1949] MLJ 285- court has a duty to consider
charge and amend if necessary but not to search the law for offences.
#MOHD YUSOF [1962] MLJ 311 - M is duty bound to amend if
evidence does not support charge
# SALAMAH [1947] MLJ 178 - preferable to amend charge at the
end of prosecution's case.
#TAN KIM KANG [1962] MLJ 388- safer way to amend charge after
prosecution's case
#JAMES TAN [1983] 2 MLJ 173 - M ought to amend charge if facts
disclose another offence.

2. s.158 does not give prosecution a right to amend the charge

without leave of court: #FRANCIS DANG ANAK NUYA [1988] 1 MLJ
89
s.173(h)(ii) & s.158 CPC
• PP v Muhamad bin Atan & 5 Ors [2009] 6 AMR 237 where
A was initially charged with murder under s.302 of the PC.
However, after hearing the prosecution’s case the judge
amended the charge to one under s.304(b) of the PC.
s.173(ha): Defence Case

• s.173(ha): read section

s.173(ha) CPC
• Accused remained silent
#KARTIGEYAN A/L KRISHNAN v PENDAKWA RAYA [2012] 4 AMR
792
Appellant was found guilty of the charges for rape and murder.
However, the Appellant opt to remain silent.
COA: as it stands that when the appellant elects to remain silent,
the court is put in a situation where it has no other choice, but to
convict the appellant on the charges as the appellant failed to
rebut the evidence adduced by the prosecution.
#AHMAD NAJIB ARIS v PP [2009] 2 CLJ 800
s.173(ha) CPC
• Accused makes an unsworn statement from the dock
#DATO’ SERI ANWAR IBRAHIM v PP [2015] 2 CLJ 145
The appellant elects to makes an unsworn statement from
the dock.
FC agreed with COA that the appellant has not created a
reasonable doubt on the prosecution’s case. The
prosecution therefore has established a case BRD. The court
affirmed the decision of the COA in convicting the appellant.
s.173(ha) CPC
#MOHAMMAD REZA v PP [2015] 4 CLJ 186
The COA emphasized that Accused makes an unsworn statement
from the dock should not be brushed aside. This is also considered
‘EVIDENCE’. The trial judge had completely dismissed the defense
as an afterthought simply because the prosecution could not
challenge the evidence and decided that it carries a minimal
weight.
COA Held: This A evidence should have been evaluated against the
Prosecution’s case to find whether the appellant had rebutted the
presumption of knowledge and as a whole a reasonable doubt had
been raised by the defense. The trial judge had therefore failed to
appreciate adequately the defense of the appellant.
s.173(ha) CPC
• Accused makes sworn statement on oath from the witness
box
- Subject to EIC, XE and RE
- Allows the credibility or the truthfulness of accused to be
tested in open court.
PROBATIVE VALUE OF A DOCK STATEMENT

• A statement from the dock is a statement made in

court for whatever it is worth;
• Because it is not made under oath and not subject to
cross examination, it is not entitled to the same
weight as evidence given under oath;
• But the judge may wonder why the accused person
elects to do so. While the judge cannot draw adverse
inference, he certainly can draw appropriate
inference with regards to the refusal or reluctance of
the accused to give evidence and to subject himself to
cross examination; and

04/29/2024 1
Contd.
• At the end of the day, the court is free to give the
dock statement the weight it deserves or not at all,
having regard to the whole of the evidence in the
case.
• See cases like Lee Boon Gan v R [1954] 20 MLJ 103;
Udayar Alagan & Ors v PP [1962] 28 MlJ 39;
Mohamed Salleh v PP [1969] 1 MLJ 104; Juraimi bin
Husin & Ors v PP [1998] 1 MLJ 537; DPP v Laery
Walker [1974] 1 WLR 1090; DSAI v PP (HC, COA and
Judgment of the Federal Court pending).

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s.173i - amended charge to be read
and explained
• s.173i: Read section

1. #LIM THUAN HONG v JEBSEN [1985] 4 Ky 79 - mandatory

for amended charge to be read and explained to the A
2. cf. #HEE NYUK FOOK [ 1988] SC 2 MLJ 360- not
mandatory but discretionary for amended charge to be
read and explained to A.
s.173j - Guilty plea or claims trial to
amended charge -Defence case
• s.173j: read section

1. s.257 (1) - court to explain prosecution's case to undefended A.

#SHAARI [1963] and #POR CHOO AIK [1993] - s.257 (1) not
followed. Did not prejudice A who had a good defence - s.422
could cure it.
2. s.173 (ha): read Section
3. “A remains silent”
i. s.257 (2) - failure of A to give evidence (Silence) shall not be
made the subject of adverse criticism by prosecution.
ii. Prosecution has a legal burden to prove BRD: # YUVARAJ [1969]
4. “ A given unsworn evidence”
i. A cannot be crossed-examined
ii. #IP YING WAH [1958] MLJ 34 - court must consider
statement and assess weight
iii. #TOH AH LOH & MAK THIM [1949] MLJ 134 - statement
of A may be hearsay or other inadmissable evidence
5. “ A gives sworn evidence” - must be 1st witness:
Provision to s. 173 j
s.173k - A's written statement
• s.173k: read section
s.173i - A may apply for any witness,
document or things
• s.173i: read section

1. s..51 - Court may issue summon for prosecution to

produce document or other things
s.173(j) & s. 425 - Recall of witnesses
• s.173(j) - allow A to recall witnesses for examination or XE.
• Recall of WS by prosecution (P):
i. CPC is silent - in practice it may be allowed. P may apply
under s.425 which empowers the court to recall any witness
ii. #YAP KOK MENG [1974] 1 MLJ 108 - P allowed to recall
PWs before the end of P's case
• Recall WS when charge is altered.
s.162: when charge is amended by court after
commencement of trial, P and A shall be allowed to
recall and examine any witnesses an dmay also call
further material evidence
#CHOCK MONG HOO [1995] 2 AMR 1131 - M amended
charge and allowed only A to recall WS for the defence.
Held under s.162, A may recall any WS and may also call
further material evidence.
RECALL OF WITNESS IN A CRIMINAL TRIAL
The law is found in the following provisions:

1.Section 173 (j) (iii) and 173 (l) CPC :

•application to recall witness by defense/accused for examination or cross
examination.
•application to be made during defense case under section 173 (j) (iii) but it may
extend to during prosecution’s case pursuant to section 173 (l) CPC.
2.Section 162 CPC :
•application to recall witness by prosecution or defense.
•application to recall witness by prosecution or defense made when
charge against accused is amended by court after commencement of trial. It may
extend to the stage of the prosecution’s case or defense case.

04/29/2024 2
Contd.
3. Section 417 (4) CPC:
- by court, prosecution or defense.
- when a case which is partly-heard and
transferred to the transferee court, the
transferee court may allow an application
to recall a witness.
4. Section 425 CPC:
- by court, prosecution or defense.
- at any stage of the trial.
4. Section 138 (4) Evidence Act (EA)1950:
– by prosecution or defense.
- at any stage of the trial.
04/29/2024 2
Contd.
• Application for recall of witness may be made by the prosecution or defense.
• Application may be made at any stage of the case, but subject to the
applicability of the provision of law used.
• As to whether an application for recall of witness will be allowed or disallowed
is always at the discretion of the court trying the criminal case.
• The factors to be taken into account by the court will be the principles of
fairness and justice and facts and circumstances of each case.
• This is simply because the witness intended to be recalled has testified in court
and the recall if allowed afford a second opportunity (‘second bite at the
cherry’) to the applicant be it the prosecution or defense.

04/29/2024 2
Contd.
• As to the applicant, stage of application in a criminal trial,
provision of the law used and how the court had exercised its
discretion either to allow or disallow an application for recall
can be discerned from the following case authorities:
1. Yap Kok Meng v PP [1974] 1 MLJ 108 - recall of PW by
prosecution before close of prosecution case; trial judge
refused the application; High Court reversed decision by
saying that the refusal is unjustified as a witness should be
allowed to testify.
2. Kee Lik Tian v PP [1984] 1 MLJ 306 – recall of complainant in a
rape trial to be further cross-examined by defense; trial court
refused application; High Court on appeal allowed the recall
as it is justified pursuant to section 138 (4) EA.

04/29/2024 2
Contd.
3. Kee Seng Nee (1949) MLJ 210 – after counsel for defense had submitted to the court
at the end of defense case, the magistrate cannot recall prosecution witnesses.
4. Day [1940] 1 AER 402 – After the defense has been closed no further evidence should
be called either by the court or either party unless the cause for such evidence is one
which no human ingenuity could have foreseen.
5. Although an application to recall of witness may be made at any stage of the trial
pursuant to section 425 CPC, the discretion has to be exercised premised on the
principle of justice according to the facts and circumstances of the case.
6. Loke Poh Siang (1957) MLJ 107 – PW was called by the court at the end of
prosecution case; held to be justified to rectify an omission in the prosecution case
pursuant to section 425 CPC and the court had absolute discretion to do so.

04/29/2024 2
Contd.
7. Boo Chew Hia (1963) MLJ 33 – Witness may be recalled if it is essential for
the just decision of the case.
8. Abdul Hamid [1969] 1 MLJ 53 – Witness may be recalled pursuant to section
425 CPC at the close of a case of any party when there is strong and valid
reason.
9. Ramli bin Kechik [1986] 1 CLJ 308 - DPP during prosecution case send 9
exhibits found in the possession of the accused to the chemist, thereafter
fresh evidence called on those exhibits. The court allowed the application
pursuant to section 425 CPC so as to comply with the principle of justice
which is to enable the court to get at the truth and come to a proper
conclusion. In this case the exhibits need to be sent to the chemist to be
analyzed to determine from which plant the raw opium had been extracted.

04/29/2024 3
Contd.
10. Phon Nam [1988] 3 MLJ 415 – charge was for trafficking in
dangerous drugs; two chemist reports were served by DPC
Yunan on the accused; accused had acknowledged receipt.
DPC Yunan not called as PW nor offered to the defense. When
the court drew attention to it, DPP used section 425 to call DPC
Yunan and the court refused the application and acquitted the
accused.

Case taken on appeal to the Supreme Court where it ordered the High Court to invoke section
425 and allow the DPP to call DPC Yunan.

The trial resumed, court ordered for the calling of DPC Yunan. At the end of prosecution case,
defense submitted that there is still no evidence of proper service of the chemist report on the
accused.

Pursuant to that the judge allowed the DPP this time to recall DPC Yunan.

04/29/2024 3
Contd.
After which the court had ordered the accused to enter
his defense and at the end of defense case, the accused
was convicted.
The accused then appealed to the Supreme Court
against the conviction. The Supreme Court acquitted
the accused because there is no evidence as to proper
service of the chemist report even after a 3rd chance
(including the recall). The recall was held to be a
wrong exercise of discretion by the court and
amounted to an error in principle. See also the case of
Abdul Rahim bin Abdul Satar [1990] 3 MLJ 188.

04/29/2024 3
s.425 - Power of Court to summon and
examine persons
• s.425 : read section
#RAMLI BIN KECHIK [1986] (SC) 2 MLJ 33 Mohd Azmi SCJ - 2
limbs to s.425:
1st limb: Ct has discretion to summon any person as WS or
examine any WS in attendance but not called, or recall or re-
examine any WS Called
2nd Limb: Ct has a duty to summon and examine or recall and
re-examine such persons if his evidence appears essential to the
just decision of the case
#PHON NAM [1988](SC) 3 MLJ 415 - HC hs a duty to summon
PW who served chemist report. Retrial ordered.
s.173m - Judgement or sentence
• s.173m: read section

1. #JAFA BIN DAUD [1981] 1 MLJ 315 - “according to law” - according to

penal provision of punishable sections and to accepted judicial principles.
2. Binding over:
i. s.173 A - Court's power to discharge conditionally or unconditionally:
Court may discharge conditionally or unconditionally - no record of
conviction. Usually for youthful offenders.
ii. s.294 - 1st offender - not youthful offender
court may release A on bond of good behaviour - record conviction will
be made.
s.173n - DNAA in private summons
& Compoundable offences
• s173n: read section
s.173o - Hearing in absence of the A
• s173o - read section
If A is absent after being served a summon and there are
insuffient grounds for adjournment, court may:
i. proceed ex-parte to hear and determine complaint; or
ii. adjourn hearing
ss.173(m)(1) & s.182A(i) End of case
(trial)
• ss.173 (m)(1) & s.182A(i) - At the conclusion of the trial,
court shall consider all evidence adduced and shall decide
whether prosecution has proved its case BRD.
1. # MAT v PP [1963]
2. #MOHD RADHI BIN YAAKOB [1991]
List all BRD cases
Note : CPC does refer to the duty
of P to prove BRD
• 182A Procedure at the conclusion of the trial(High Court
Trials)
• (1) At the conclusion of the trial, the Court shall consider all
the evidence adduced before it and shall decide whether
the prosecution has proved its case beyond reasonable
doubt.
• (2) If the Court finds that the prosecution has proved its
case beyond reasonable doubt, the Court shall find the
accused guilty and he may be convicted on it.
• (3) If the Court finds that the prosecution has not proved its
case beyond reasonable doubt, the Court shall record an
order of acquittal
38
CPC s.173(m) :Summary Trials

• (i) At the conclusion of the trial, the Court shall consider all
the evidence adduced before it and shall decide whether the
prosecution has proved its case beyond reasonable doubt.
• (ii) If the Court finds that the prosecution has proved its case
beyond reasonable doubt, the Court shall find the accused
guilty and he may be convicted on it and the Court shall pass
sentence according to law.
• (iii) If the Court finds that the prosecution has not proved its
case beyond reasonable doubt, the Court shall record an
order of acquittal.
39
• WOOLMINGTON V DPP[1935]AC 462
• MAT V PP[1963]MLJ 263
• PP V SAIMIN [1971] 2 MLJ 16
• MOHD RADHI YAAKOB V PP[1991] 3 MLJ 169
• : trite law

40
• WOOLMINGTON V DPP (1935)

VISCOUNT SANKEY L.C:

• “Throughout the web of the English Criminal Law one golden

thread is always to be seen, that it is the duty of the prosecution to
prove the prisoner's guilt subject to what I have already said as to
the defence of insanity and subject also to any statutory exception.
If, at the end of and on the whole of the case, there is a reasonable
doubt, created by the evidence given by either the prosecution or
the prisoner, as to whether the prisoner killed the deceased with a
malicious intention, the prosecution has not made out the case
and the prisoner is entitled to an acquittal. No matter what the
charge or where the trial, the principle that the prosecution must
prove the guilt of the prisoner is part of the common law of
England and no attempt to whittle it down can be entertained.”
• The duty of the Prosecution is to prove the case beyond
a reasonable doubt, whist the accused has to merely cast
a reasonable doubt.
• PP v SAIMIN [1971] 2 MLJ 16 –
“….a doubt which makes one hesitate as to the
correctness of the conclusion that one reaches …. It is
the doubt that settles in one’s judgement and finds a
resting place there ….. A reasonable doubt must be a
doubt raising from the evidence or want of evidence and
cannot be an imaginary doubt or conjecture
unrelated to evidence …..”
• In reaching his decision therefore, we refer to MAT v PP
[1963] MLJ 263:-
(a) If you are satisfied beyond a reasonable doubt as to the
accused guilt – convict
(b) If you accept or believe the accused’s explanation – acquit
(c) If you do not accept or believe the accused explanation –
do not convict but consider the next steps below;
(d) If you do not accept or believe the accused explanation
and that explanation does not raise in your mind a
reasonable doubt as to his guilt – convict
(e) If you do not accept or believe the accused’s explaination
but nevertheless it raises in your mind a reasonable doubt
as to his guilt – acquit.
• MOHAMAD RADHI BIN YAAKOB V PP [1991] 3 MLJ 169

Held, allowing the appeal:

(1) Even though a judge does not accept or believe the accused's
explanation, the accused must not be convicted until the court is satisfied
for sufficient reason that such explanation does not cast a reasonable doubt
on the prosecution case.
(2) Where the prosecution relies on available statutory presumptions to
prove one or more of the essential ingredients of the charge, the particular
burden of proof, as opposed to the general burden, shifts to the defence to
rebut such presumptions on the balance of probabilities which from the
defence point of view is heavier than the burden of casting a reasonable
doubt but it is certainly lighter than the burden of the prosecution to prove
beyond reasonable doubt.
(3) Unless the evidence in a particular case does not obviously so
warrant, it is incumbent for the court to consider whether on balance of
probability the defence has rebutted the statutory presumptions of
trafficking under s 37(da) of the Act as a separate exercise even though the
court is satisfied on balance that the presumption of possession under s
37(d) of the Act has not been rebutted. In this case the failure to do so was
a material misdirection and was fatal to the conviction.
(4) The learned trial judge has acted on the wrong premise that once the
appellant had failed to rebut the presumption under s 37(d) of the Act, the
presumption under s 37(da) of the Act had also not been rebutted. On the
facts of this particular case this error of law had occasioned a miscarriage
of justice.
s.173(d) & s.179(2) - Calling
Prosecution witnesses
• s.173(d) & s.179(2) - Prosecution adduces evidence - EIC,
XE, Re-E of PWs.
1. Prosecution has a discretion to call any PWs and court
will not interfere.
#ADEL MUHAMMAD EL DABBAH [1944] AC 156
#MUHARAM BIN ANSON [1981] 1 MLJ 222
2. PWs not called to give evidence must be brought to
court's attention and made available to defence: # TEH
LEE TONG [1956]
3. Effect of failure to call PWs:
#ABDULLAH ZAWAWI [1985] (SC) 2 MLJ 16 - if failure to call a
particular PW is a serious gap, adverse inference under
s.114(g) EA 1950 may be made - for defence to call the offered
PW to close the gap
#TEOH HOE CHYE [1987] (SC) - failure to call a material PW
may be fatal to prosecution's case
#MOHD OSMAS B. PAWAN [1989] (SC) - custom officer not
called to give evidence and offered to A - serious gap
#ABDULLAH B. YAACOB [1991] (SC) 2 MLJ 235 - failure to call
police officer in custody of the drugs is a serious gap.
#TI CHUEE HIANG [1995] - prosecution has discretion to call
any PWs and has to prove BRD - failure to call the informer
who is an agent provocateur - serious gap.
3. Effect of failure to call PWs:
#PP v PAOSI ARONG & ANOR [2010] 7 CLJ 1049 – the
prosecution failed to produce a crucial witness which could
help prove the possession of a car which contained drugs.
Thus, the court held that there was a gap in the evidence and
acquitted the A.
s.114 EA 1950 - Presumption of
existence of certain facts
• s.114 EA 1950 - Court may presume existence of any facts in
situations (a) - (i).
• Presumption of adverse Inference :
i.s.114(g) EA 1950 - court may presume evidence which could
be and is not produced would if produced be unfavourable to
the person who withholds it.
ii. This presumption applies to prosecution or defence where
evidence available is withheld.
s.271 - Demeanour of witnesses
• s271 - M may, at foot of the notes, record any remarks on
the demeanour of witnesses (WS).
#LOW TOH CHENG [1941] - M may disbelieve witness -
usually has to give reasons
#TARA SINGH [1949] (CA) - impression of demeanour of WS
only after totality of his evidence.
#TENGKU MAHMOOD [1974] - approved TARA SINGH -
demeanour not always touch stone of truth - only one of
ingredients to determine credibility of WS.
#DAVID ANTHONY [1985] 1 MLJ 453- M did not record
demeanour although word demeanour written - retrial
ordered as likelihood of biasness.
SECTION 271 CPC
• The Indian Supreme Court case of Ganeshbai Shankarbhai AIR
1972 SC 1618 illustrates this provision as follows:
• “The remarks representing the demeanor of the witness made in
the judgment, though not made either during or at the close of
the examination of the witness by a trial judge, should be given
due weight by the appellate court in appraisal of the evidence
given by such witness. But where the trial judge had not indicated
any reason, which impelled him to make remarks in the judgment,
the appellate court was held right in not paying much attention to
the remarks.”
• See the Malaysian case of David Anthony [1985] 1 MLJ 453.

04/29/2024 5
Contd.
• What prevails is the credibility of the witness.
• Demeanor of a witness is an ingredient of credibility
which must be particularized. See the case of Low Toh
Cheng (1941) MLJ 1 as well as Tengku Mahmood
[1974] 1 MLJ 110.

04/29/2024 5
Defense of Alibi under section 402A CPC
• Unlike the earlier provision (now amended), there is
no requirement as to time period of notice.
• The notice given by the accused under section 402A
CPC shall include particulars as specified in 402A (4)
CPC.
• The rationale for such a notice to be given to the
prosecution is explained in section 402A (3) CPC.

04/29/2024 5
Some case authorities
• Yau Heng Fang [1985] 2 MLJ 335; Illian & Anor v PP
[1988] 1 MLJ 421 – the burden on the accused is only
to raise a reasonable doubt and not a heavy one like
to prove on a balance of probabilities.
• Vasan Singh [1988] 3 MLJ 412; Ng Thian Soong [1990]
2 MLJ 148 – if the defense of alibi is raised as a bare
denial e.g. I was not there, I was elsewhere, the court
cannot reject it but shall still consider the bare denial
to see if it ultimately raises a reasonable doubt on the
prosecution case.

04/29/2024 5
Contd.

• Ku Lip See [1981] 1 MLJ 258; [1982] 1 MLJ 194 – the

range of time provided by the prosecution in the
charge preferred against the accused is sufficient for
the accused to advance a defense of alibi.
• Wong Kim Leng v PP [1997] 2 MLJ 97 – material
amendment to the charge made by the prosecution
cannot deprive the accused the defense of alibi and
the prosecution should still investigate the alibi
raised.

04/29/2024 5
Contd.
•Krishnan [1981] 2 MLJ 121 – the Federal Court decided that a
Notice of Alibi can be signed by the solicitor for the accused.
•Hussin bin Silit v PP [1988] 2 CLJ 9 – as to the issue whether a
notice under section 402A CPC must be a proper notice or can it
be a constructive notice as in this case it was stated in the
accused’s cautioned statement, the court had decided that it
should be a proper one and this decision is made by virtue of the
old provision.
So consider if the said decision is applicable to the present
scenario where the landscape for a defense of alibi to be raised is
now altered.
• PP v AZILAH HADRI & ANOR [2015] 1 CLJ 579

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s.256 CPC & s.165 EA 1950 -
Questions by court
• S256: read section.
• Court may put question to A:
(1) Court may question A to explain any circumstances
(2) A not sworn – not liable to punishment if he refuses to answer of gives false
answers – court may draw inference it thinks just.
(3) A’s answer may be evidence for or against him
(4) Examination to enable A to explain any circumstances and not a general
examination.
(5) Questions not to induce the A to make incriminatory statements
(6) Questions to explain facts against A
(7) Questions not to supplement A’s case
(8) Question and Asnwers to be recorded
s.256 CPC & s.165 EA 1950 -
Questions by court
• S256: read section.
• Court may put question to A:
(8) Question and Answers to be recorded in full in National
Language by the court in Peninsular Malaysia and in English
by the courts in Sabah & Sarawak and shown and explained
to the A – opportunity for him to explain or add to the
answers.
(9) Where A declares record to be true, M to sign it.
s.256 CPC & s.165 EA 1950 -
Questions by court
• S.165 EA 1950 – Judge may question witnesses: Judge may, in
order to obtain a proper proof of relevant facts, ask any
question of any witness.
• Q: Whether trial judge has exceeded his powers:
#GAN KOK LIONG [1969] – XE of A by Session court President was
justified.
#LIM CHIN POH [1969] – trial judge intervened on numerous
occasions and said he was displeased and annoyed with
appellant. Held: No evidence that trial judge has sided with
prosecution
#TENG BOON HOW [1993] (SC)
s.174 – Address & Submission to
court
• 1. Address to court
i. Opening case for prosecution:
a. In summary trial prosecuting officer (PO) need not
open case: s. 174(1)
ii. Defence case
a. In summary trial defence may open his case and
sum up his case if defence adduce evidence: s. 174(2)
iii. Right to reply:
a. In summary trial PO shall have a right to reply if defence
gives evidence: s. 174(3)
• Authorities:
#MAHINDER SINGH [1941] MLJ 230
#CHONG BOO SEE [1988] 3 MLJ 292
# LOW THIM FATT
s.174 – Address & Submission to
court
• 1. Address to court
Authorities:
#LEE KWAN WHO v PP [2010] 2 AMR 231
The trial judge did not wish to hear submission as he was
satisfied that the prosecution had made out a prima facie
case.
Gopal Sri Ram FCJ Held:
“….its the constitutional guaranteed right for an A to a fair
trial includes his right to make a submission of no case at
the close of the P’s case. The A’s right under Article 5(1) has
been violated. He is entitle for his conviction to be set aside
…..”
THANK YOU